PEOPLE v. JOHNSON

It is hereby ORDERED that the resentence so appealed from be and the same hereby is unanimously affirmed.

Memorandum: The contention of defendant that Supreme Court failed to abide by the terms of our remittal in resentencing him as a persistent felony offender ( People v. Johnson, 275 A.D.2d 949, 951, lv denied 95 N.Y.2d 965) is not preserved for our review ( see People v. Proctor, 79 N.Y.2d 992; People v. Hernandez, 273 A.D.2d 176, lv denied 95 N.Y.2d 890, 935; People v. Banks, 265 A.D.2d 163, lv denied 94 N.Y.2d 819). In any event, defendant's contention lacks merit.

Defendant contends in a pro se supplemental brief that the procedure pursuant to which he was resentenced as a persistent felony offender is unconstitutional. That contention is not preserved for our review and, in any event, is without merit ( see People v. Rosen, 96 N.Y.2d 329, 334-335, cert denied 534 U.S. 899). We conclude that defendant's remaining contention in the pro se supplemental brief also is without merit.